Hubby denying visitation because I cheated with a woman

Dear Mrs Macaulay,

I cheated on my husband with a woman and now we are separated. She stood by me through my emotional roller coasters with him. When he found out about my adulterous life he took our only son and told me that I would see him every weekend and on holidays. Because of my cheating, I felt as if I owed him happiness so I agreed with the arrangement, not knowing that his family and others would interfere with my child seeing me.

Now he doesn’t want my son to even talk to me on the phone. There are no court orders stipulating custody, care and control of my son, as I am fearful that my sexual orientation will negatively impact on the decision of the judge. My ex is not loyal to his words nor his actions and continues to toy with my emotions as he will sometimes tell me to pick up my son and then cancel on me. I don’t think that he really wants the child to live with him but instead I think he is being spiteful towards me.

I would appreciate an honest response as I urgently hope for my son to be reunited with me.

Thank you for your letter which introduces a new dimension to the issues of custody, care, control and access to a child after the breakdown of a marriage or common-law union.

You say you are afraid to take the matter to court because of your sexual orientation, which you feel will have a negative impact on the decision of the judge. But as a matter of law and human rights law, your sexual orientation does not deprive you of your human and legal rights and obligations. However, in some national laws of some countries there are provisions which would prohibit you from exercising certain rights.

Here in Jamaica, there is a clear prohibition in the Matrimonial Causes Act of marriage between persons of the same sex. Such marriages are in Jamaican law null and void despite the fact that the parties are otherwise qualified to give their consent and do so. Nothing, the Act says, can validate such marriages. Your problem, however, has to do with your right to have a part in the custody, care and control of your son and/or to have reasonable access to him. Under the Children (Guardianship and Custody) Act, mothers and fathers have equal rights with regard to the custody, care and control of any child of theirs. Neither the father’s nor the mother’s claim for any of these is superior to the other’s.

In such applications, the Act makes it abundantly clear that when a court is deciding a claim for the custody, care and control of a child, it must consider the welfare of the child as the first and paramount consideration and it cannot consider on any other point of view that the claim of the father and his right is superior to the mother’s and her right.

In other words, the court, (that is the judge) in deciding any claim you file for custody, and for the care and control of your son with specifically ordered access to his father, or for joint custody, with care and control to the father (if he really wants this) and with specifically ordered access to you, must consider what is in the best interests of the child as the pivotal issue. The court must take into account all the evidence and the wishes of all the parties, including that of the child (if old enough to understand the matter and state his views) and weigh everything and decide what then is in the best interests of that particular child.

When you file your claim, and you must do so as quickly as possible, you should know that the court in considering your claim will decide it on the basis of what is in the best interests of your child and it cannot allow its judgement to be clouded by what may be stressed due to the anger and bitterness of one party.

The fact of your sexual orientation ought not to result in an adverse decision against you having a relationship with your son. There are in fact several cases which have been decided in domestic and human rights courts on the right of parents vis-à-vis their children in circumstances such as yours. If there is an automatic bar against such a parent, then the decision would be bad in law because investigations or cogent evidence would have to show that you are an unfit mother who has caused or would cause harm to your child to enable the court to decide that it would not be in your son’s best interests for you to have any presence in his life. An appeal can be filed against such an adverse decision.

If you are thinking and fear that prejudice is the norm, then all persons engaged in sex work, go-go and nude dancing, porn shows and such occupations would never be accepted as good parents and have orders of custody, care and control made in their favour. The occupation or orientation is not what determines what kind of parent anyone is, though it will be considered regarding what effect, if any, it does or could have on the child. It is the action and conduct of the person in parenting their child and the sort of nurturing given to and teachings they instil in their child that would be relevant to any judge in deciding what is in the best interests of the child. You are not a drug addict who indulges in the presence of your child and who, having taken your drug of choice, cannot account for your behaviour and conduct thereafter. This type of person could and would be a danger to or be likely to cause harm to their child. Surely your situation is not in the same category.

As I have said, I think you must set aside your fears and you owe it to your son to do everything in your power to ensure that he continues to have a mother-and-son relationship with you. It is his right to have this as long as you will not cause him harm, and there is no reason to conclude that you will. I also suggest that because of the sensitive nature of your circumstances that you retain a lawyer to file your claim in the Supreme Court. It is a superior court of record, so your application and affidavits in support must be in writing and your husband’s response thereto must also be in writing.

The hearings of the application are held in a judge’s chambers, where only the judge, you and your lawyer(s), your husband and his lawyer(s) and the clerk will be present. Everyone sits around a table to deal with the entire matter.

So please go ahead, retain your lawyer and have your application prepared and move on without fear. You must do this as soon as possible. You cannot rely on your husband when it comes to your child’s right to have a relationship with you, as well as with him. You have to fight for it and ensure that you get the orders necessary to enable you and your son to continue your relationship of mother and son. Make your application now. No court can possibly decide to bar you and your son from having a relationship merely because of what you did; as such a decision would be based on wrong grounds and so be invalid.

Good luck to you and your son.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver. com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5.